Legal arguments not enough to get around the requirement to get your Owners Corporation’s consent to install air-conditioners on common property…
In May 2013, VCAT issued a decision ordering lot owners to remove an air-conditioner and pay for repairs to common property after they installed it on common property without Owners Corporation approval.
The lot owners argued they didn’t need Owners Corporation approval for the installation because there was an implied easement allowing them to install the air-conditioner.
However, VCAT rejected the lot owners’ argument that there was an implied easement after taking into account the owners corporation’s evidence that the installation of the air-conditioner placed a significant burden on other lot owners due to the increased fire risks and insurance implications of the unauthorised installation. It was also held that the installation of the unit damaged and defaced common property, constituting a breach of the Owners Corporation’s Rules.
Notwithstanding the above case, there are many situations where a lot owner will be permitted to install an air conditioner in common property (whether that be an automatic right under an implied easement or pursuant to consent with the Owners Corporation together with a licence for the common property space).
Lot owners need to be careful though. Just because it might suit the lot owner to put an air-conditioning condenser in common property, if there is an alternative, then that needs to be considered. There was another VCAT case in 2018 where a lot owner was denied the ability to have an air-conditioning condenser where there was an acceptable alternative location other than common property.
We can make what is an otherwise complicated situation easy to understand for an Owners Corporation and ensure that issues such as liability, repair and maintenance and compliance with Rules and the Act are dealt with.
Case Reference: Owners Corporation PS326519P v May (Owners Corporations)  VCAT 933
Case Reference: Braybon v Owners Corporation 317860  VCAT 1505